Bush v. Gore: The Disputed Election Fades Into History

Exactly ten years ago, on November 7, 2000, the presidential election pitting Al Gore against George W. Bush morphed into the legal recount contest ultimately titled Bush v. Gore. The sitting vice president, Gore, won the national popular vote. The former Texas governor, Bush, was awarded the electoral votes of Florida and thus the election.

Amid evidence of voter chaos over "butterfly ballots," poll police, and more, Gore challenged the Florida results in court. It took five tortuous weeks, in courtrooms from Tallahassee to West Palm Beach to Washington, and unprecedented intervention by the United States Supreme Court, to end the counting of chads, hanging or otherwise, in the Sunshine State. When it was over, Bush was awarded the presidency. And the rest, as they say, is history.

Perhaps if the interceding decade was not so momentous it would more surprising to see the Bush v. Gore battle to fade into memory; a quirky piece of American history, like the election of 1876 when New York's Samuel Tilden outpolled Rutherford B. Hayes only to lose after a dispute over electoral votes in three states, or Ross Perot, whose third party run for President in 1992 netted the largest among of votes for an independent since Theodore Roosevelt in 1912.

Alas, America has endured these past ten years her most tumultuous decade since the 1960s. Terrorism. War. Economic ruin. We can never know whether any of it, or all of it, would have been different had Gore prevailed 10 years ago. We cannot rewind the clock and see what the alternative universe looks like. But we can acknowledge with the benefit of a decade that most of the direst post-recount predictions about the impact Bush v. Gore would have upon law and politics have turned out to be wrong.

Don't forget: The Bush v. Gore world lasted only 274 days, from December 12, 2000, the day the Supreme Court told Florida officials to stop counting ballots, until September 11, 2001, the day the United States suffered its worst terror attack in history. After the Twin Towers fell, until the Iraq War, the nation was united politically in a way it had not been since World War II. Much of the rancor generated from the Florida fight ebbed away amid a flood tide of patriotism and bipartisanship. The 2002 midterm election, the first national contest after Bush v. Gore, was neither close nor controversial. Under President Bush, whose favorable ratings were sky high in 2002, Republicans gained seats in both houses of Congress.

This era of comity, this banding together of the right and the left, ended in 2003 -- the war in Iraq clearly being the turning point. But the partisan re-set that occurred at that time could not and did not re-set back to the Bush v. Gore era. Too much had happened in the intervening years; the stakes were higher, not lower, than they had been in the fall of 2000. On the eve of the 2004 presidential election, there were grave concerns about post-election litigation. And there was a recount in Ohio, following President Bush's narrow victory over Democratic challenger John Kerry there. But Kerry conceded quickly to the war president and did not challenge the Ohio results in court the way Gore, and later Bush, had challenged Florida's recount. Still, no one wanted to sue the commander-in-chief over ballots.

Subsequently, the national elections of 2006, 2008, and 2010 were not close enough to warrant or generate an avalanche of litigation, with the Norm Coleman-Al Franken fight over a Minnesota Senate seat being the most notable exception. There may yet be another Supreme Court showdown over a presidential election. But unless it happens in the next two elections that mess will belong to a different generation than the one that gave us Bush v. Gore. One of the legacies of the pitched battle ten years ago is that voters appreciate now, in a way they did not before Florida 2000, that our elections, like any human endeavor, are fraught with errors. Bush v. Gore thus opened eyes and lowered expectations. Voting in America is guaranteed by law but not in fact. The votes of some simply don't get counted.

Evidently we've come to accept this. After 2000, the "endless recounts" and interminable post-election lawsuits never really came on with any force. Instead, Congress passed the Help America Vote Act of 2002 and secretaries of state all across America scrambled to fix their voting systems and operations. Thousands of lawyers become "election law" specialists-- but most of them pay the bills doing other things. And judges have reverted back to their more traditional roles in election law-- ordering polls to stay open, certifying candidates or causes, and occasionally chiming in on voter registration or identification laws. Some election law changes since 2000 have benefited Republicans. Some have benefited Democrats. What Bush v. Gore didn't do was to push Congress to pay for the technology needed to update all voting places. There is still much work to do co fix problems that continue to be reported.

Ten years ago, there were also dire predictions that the Supreme Court would lose prestige and credibility as a result of its unique 5-4 ruling in Bush v. Gore. The Court today is markedly different than it was then. Chief Justice William Rehnquist and Justices David Souter, Sandra Day 'Connor, and John Paul Stevens all are gone. In their place have come Chief Justice John Roberts, and Justices Sonia Sotomayor, Samuel Alito and Elena Kagan. The Court's most important contribution to election law since 2000 was its 2008 decision upholding Indiana's stringent voter registration law. Not surprisingly, the conservative Court in Crawford v. Marion County generated a result favored by Republicans, just as a conservative Court had done on December 12, 2000.

So did the Court lose respect among Americans for its ruling in Bush v. Gore? Did it lose legitimacy? You can argue it both ways and scores of legitimate scholars have gleefully done so. If the Court did lose some credibility, and I think it did, clearly it did not lose enough to generate much of an anti-Court backlash. The Justices are still going strong-- witness their landmark corporate speech case this past January in Citizens United. And so are their critics. Bush v. Gore didn't change the world. The world changed shortly after Bush v. Gore and it's likely never going to change back.

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50 Comments

Gore had less class than even Richard Nixon to put the country through that wrenching and unnecessary 39-day challenge to an election he had lost. Given Gore's hypocritical gluttonous personal energy profligacy coupled to his stubborn insistence that the Earth's climate is in peril at the behavior of suburban Americans.

sndjentinc and ajtlawyer ... I think there is significant confusion of facts here, having lived through this travesty from a very close perspective and having it indelible etched in my mind ... the supreme court did not say that Bush won the three recounts before, could not have another "and put a halt to it", or that the panhandle vote threw off the tally, or that Gore tried to have the overseas vote thrown out, AND that Bush won every recount. the fact is there is no turmoil in assuring that or elections are fairly judged ... the chaos was first in a lack of standards in counting or votes, i.e. your voice in this goverment, and then the ensuing political manipulation of that system. Please fact check me, but the Gore comment on the validity of the oversea votes came about when Catherine Harris did not accept the delay of the manual vote of the 4 most populous counties; Palm Beach, Volusia, Broward and Miami-Dade, all typically democratic BUT was would wait for the overseas vote to come in about a week later BEFORE she would certify the final outcome of the election. This was an unfair bias to deny the CORRECT TABULATION of a great deal of votes that would trend democrat and then allow others that would trend republican. the discussion was how can you allow one and not the other, NOT just deny the overseas vote. An out of context recall of the event. That was just the beginning to the court challenges. The State Supreme Court ordered a statewide mandatory manual recount to be fair and count the all the votes THEN a day later the US Supreme Court stayed that order (stopping the recount) due a week later ... the court then issued its decree on the day of the deadline. The court ruled here was no way to establish a uniform standard of vote counting or counting all the votes before the expiring deadline ... so by default the last established vote stood. Gore's only remedy was to court challenge the date ... where he THEN chose not to. In my judgement in erro. There were no multiple vote recounts that called Bush the winner, only one that was continually manipulated by Catherine Harris (Jeb Bush), local courts and ultimately the Supreme Court. Every independent report conducted after that declaration had Gore winning the vote ... and Fox Noise is not independent. Check out www.rci.rutgers.edu/~gpomper/FloridaRecount.doc for a concise summary. I won't get in the Volusia County hack intended to get Gore to inappropriately concede, democratic vote spoilage or any of dozens of other accounts of voter fraud that favored Bush. As the phrase goes you are entitled to an opinion , but not the facts ... This would have been a very different country if the truth was told in time.

A lot of the comments here are dragging this out just like the Kennedy assasination conspiracy. If Gore was elected the country would be in worst shape then it is. Let the election be relegated to history and lets get on with our lives.

For those of us who care deeply about the integrity of the United States Supreme Court, the decision in Bush v, Gore is not "forgettable." Sadly, the Court did damage not only to itself but ,by extension, to the American people,not because of the result but because of its lack of judiciousness in reaching a decision.

fades into history ? the only statement I,ll remember about the " hanging chad " election is good ole georgie boy bush placing himself on national tv saying , " this is america , every vote should count , but I don't want a recount " . now that statement my friends will not fade into history .

Gore was insisting on a cherry-picked partial recount in Dem-dominated counties only. Ironically, if he had been asking for a total recount of all Florida counties, the result might have been different.

That day was the day we lost our democracy. The Tea Party screams about us ing our democracy because Obama is a socialist or whatever their gripe is. But on that day we actually lost our democracy literally, when the right wing of the Supreme Court took our vote from us. What could possibly justify stopping the counting of votes to determine who the American voters and specifically the voters of Florida actually voted for as President? How could anyone possily justify ending that recount on the basis that it was taking too much time? Our democracy was stolen from us on that day. And the same right wing of the Supreme Court now has stolen our democracy again with Citizens United. We no longer have a democracy, we now have an plutocracy, which is rule by the wealthy. No longer is our government chosen by the choice of the multitudes after a fair competition of the candidates, it is now chosen by a few corporations who can overwhelm candidates who won't do their bidding with tens of millions, even hundreds of millions of dollars worth of negative TV ads. And once their choice is elected they can use the lure and threat of tens of millions in contributions to dictate what laws get passed and what laws get killed.

The votes were actually counted and Bush won. The New York Times and a coalition of other newspapers financed a count of the votes and Bush had n=more than Gore. The suypreme couort ruled that you could not change the rules in the middle of an election. Another thing you forget in your discussion is tghat the Citizens United decision also allows the unions unlimited contributioins and they contributed more in this election than any other entity, AFSCME being the highest contributor of all>

After Bush v. Gore several liberal groups did an unofficial recount of the disputed votes just as Gore had wanted and the result? Bush won in every recount. Somehow that fact is always omitted when liberals want to revisit the 2000 election. Because you know very well that had the post-election recounts turned out to prove that Gore had won Florida, there would have been no end to commentary and protests from the Left. Gore could've made it all moot by winning his home state of Tennessee but he didn't. And every man who has been elected to the Presidency has won his home state. Maybe Gore should've been looking at why his home state rejected him.

The presidential election in 2000 was stolen with the help of a family conspiracy against the voters. I think everyone knows it. Similarly, the presidential election in 2004 was stolen with the help of fraudulently programmed voting machines in Ohio. As we discovered, just because someone is allowed to move into the White House does not necessarily turn that person into a president.

One more fact may be relevant to your coloumn: seven news organizations commissioned re-assesments of who whould have won the Florida electoral votes if a recount had been allowed. All concluded that Gore would have won in Florida (and, thus, in the electoal college)if a recount had been conducted upon a statewide basis. At some level knowing 'who did the nation really elect', both in popular vote and electorally, probably should be part of our consciousness about what happened, even if subsequent events have swept us into new patterns.